Nigel Giffin KC successful in Court of Appeal public pensions dispute


On 17 April 2024 the Court of Appeal handed down an important judgment in R (British Medical Association, Fire Brigades Union & Ors) v HM Treasury & Ors [2024] EWCA Civ 355.

Two trade unions, the FBU and the BMA, brought judicial review challenges to the decision of HM Treasury to make the Public Service Pensions (Valuation and Employer Costs Cap) (Amendment) Directions 2021. The challenges concerned the ‘Costs Cap Mechanism’ or ‘CCM’, which is a mechanism intended to control the costs of public pension schemes. It operates by modifying members’ benefits (and/or contributions) should the measured cost of pension provision deviate from a set target. The CCM was modified by the 2021 Directions to reflect the costs of what has been called ‘the McCloud Remedy’, which follows the decision in Lord Chancellor v McCloud & Ors [2018] EWCA Civ 2844. The costs of the McCloud Remedy are estimated to run into the billions of pounds across the public service.

Having lost at first instance, the unions appealed to the Court of Appeal on four grounds: (1) the meaning of the term ‘costs’ in the statutory scheme, (2) discrimination, (3) consultation, and (4) the public sector equality duty. Laing LJ, with whom Nugee and Asplin LJJ agreed, accepted the Respondents’ arguments on all grounds and dismissed the appeal.

Nigel Giffin KC led a multi-chambers counsel team for HM Treasury, the Secretary of State for the Home Department and the Secretary of State for Health and Social Care. Oliver Jackson was also instructed at first instance and in preparing the appeal.

The judgment is available here.